{
  "id": 3587705,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERMAN TERRY, Defendant-Appellant",
  "name_abbreviation": "People v. Terry",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERMAN TERRY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE RIZZI\ndelivered the opinion of the court:\nDefendant, Herman Terry, was convicted of unlawful possession of a firearm by a felon and sentenced to 2 1/2 years in the Illinois Department of Corrections. On appeal, defendant argues that (1) the unlawful possession of firearms by felons statute is unconstitutional; (2) he was denied equal protection and due process when prosecuted under section 24 \u2014 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 1.1) for unlawful use of firearms by felons; and (3) the prosecutor\u2019s improper remarks in rebuttal closing argument denied defendant a fair and impartial trial. We affirm.\nOn September 7, 1984, defendant was arrested in front of the apartment building where he resided and charged with unlawful possession of a firearm.\nAt trial, police officers William Guest and Mike Stepney testified for the State. Their testimony was essentially that they were on routine patrol at about 8 p.m. on September 7, when- they noticed several people drinking outside of the apartment building where defendant lived. Guest and Stepney parked their car in front of the building. As they exited their car, they observed several people drinking in the vestibule of the building. There were two streetlights near the building and a large overhead security light near the entrance to the building.\nGuest was approximately four to five feet from defendant when defendant exited the building. Guest saw the butt of a gun protruding from the left side of defendant\u2019s waistband. Guest and Stepney drew their guns and ordered defendant to halt and drop the weapon. Defendant turned and walked away. When Guest again ordered defendant to halt and drop his weapon, defendant dropped the gun to the ground. When defendant turned around, Guest frisked defendant and placed him in the squad car.\nDeborah Ann Brunson testified for the defense. She testified that she lived in the same building as defendant on September 7, 1984. Brunson testified that along with her, there were approximately 15 to 20 people standing outside of the building. She saw defendant and his wife approach the building with grocery store bags in their hands. When defendant entered the vestibule, someone called out to him from a parked car across the street. Defendant then placed his bags on the ground and walked over to the car. Brunson further testified that a police car approached defendant, shined a light on the parked car and ordered defendant to step away. One of the officers ordered the people out of the car and patted them down. Defendant was also searched and patted down. Defendant was then handcuffed and placed into the squad car. According to Brunson, the gun that was recovered was found under the car on the driver\u2019s side. She also testified that defendant was in the police car when the weapon was found.\nThe gun that was found was a .22 caliber revolver with a blue-steel barrel cylinder. By way of stipulation, defendant\u2019s 1976 burglary conviction was offered into evidence.\nFollowing deliberation, the jury found defendant guilty of unlawful possession of a firearm by a felon. This appeal followed.\nInitially defendant argues that the unlawful possession of firearms by felons statute must be declared void because it (1) sweeps too broadly in encompassing activity which is wholly innocent; (2) bears no reasonable relationship to the interest the State seeks to protect; and (3) is an arbitrary exercise of the State\u2019s police power. Defendant also contends that he was denied equal protection and due process when prosecuted under section 24 \u2014 1.1 of the Criminal Code for unlawful use of firearms by felons, which is similar to section 24 \u2014 3.1 of the Criminal Code for unlawful possession of firearms and firearm ammunition. It is defendant\u2019s position that although both statutes embody the identical elements of proof, section 24 \u2014 1.1 provides for a more severe penalty than does section 24 \u2014 3.1. Thus, his prosecution under section 24 \u2014 1.1 violates the doctrine of separation of powers by giving unlimited discretion to the prosecutor to choose under which statute to proceed. We disagree.\nThe recent case of People v. Crawford (1986), 145 Ill. App. 3d 318, 495 N.E.2d 1025, is dispositive of defendant\u2019s contentions. The identical issues raised herein by defendant were thoroughly addressed in Crawford. We held that the unlawful possession of firearms by felons statute is not unconstitutional nor is prosecution under it a violation of a defendant\u2019s equal protection and due process rights. Accordingly, under the mandates of Crawford defendant\u2019s arguments must fail.\nNext defendant argues that because the prosecutor\u2019s comments drew attention to the fact that defendant did not testify, he was deprived of his right to a fair and impartial trial. We disagree.\nThe test for determining whether a defendant\u2019s right to remain silent has been violated is whether any reference to such was calculated to direct the attention of the jury to the defendant\u2019s failure to avail himself of his legal right to testify. People v. Cooper (1985), 136 Ill. App. 3d 517, 522, 483 N.E.2d 309, 312.\nIn the instant case, the conduct complained of by defendant involved the following:\n\u201cTHE STATE: There\u2019s been no testimony for the defendant in this case.\n* * *\nThere were numerous people available to counsel. The defendant was right at the scene there. His friends were at the scene there.\u201d\nWe find that the prosecutors comment was not calculated to direct the attention of the jury to the fact that defendant did not testify. As the trial court correctly observed, these comments made by the prosecutor were invited by statements made by the defense. The prosecutor\u2019s comments were preceded by this statement from the defense:\n\u201cDEFENSE: You have been told, ladies and gentlemen, *** before this case started and Judge Hall will tell you again verbally and in writing, the fact that Herman Terry has been convicted of a crime on a prior occasion, that evidence is admissible insofar as his case is concerned in order to prove up an element of their case and to allow you to make a determination of what weight to attach to his case. Now you say, \u2018He ain\u2019t testified. We can\u2019t attach it to what he says.\u2019 But he has. As I told you in opening statement, he said, T didn\u2019t do this.\u2019\nTHE STATE: Objection. Objection. There\u2019s been no testimony from the defendant your Honor.\u201d\nThe comments defendant labels as improper were made by the State in direct rebuttal to a statement made by the defense. The defense in its closing argument stated that although defendant did not testify, the jury was told in the defense\u2019s opening statement that defendant said he \u201cdidn\u2019t do this.\u201d If a prosecutor\u2019s comments and arguments are invited by remarks made by the defense, the defendant cannot claim prejudice by those remarks. (People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229, 1234.) Thus we find that instances of prosecutorial misconduct cited by defendant meritless.\nAccordingly, the judgment of the trial court is affirmed.\nAffirmed.\nWHITE, P.J., and FREEMAN, J., concur.",
        "type": "majority",
        "author": "JUSTICE RIZZI"
      }
    ],
    "attorneys": [
      "Randolph N. Stone, Public Defender, of Chicago (Debra A. Zisook, Assistant Public Defender, of counsel), for appellant.",
      "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Joan E. Disis, and Elmer D. Ellis, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERMAN TERRY, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 85\u20142927\nOpinion filed November 30, 1988.\nRandolph N. Stone, Public Defender, of Chicago (Debra A. Zisook, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Joan E. Disis, and Elmer D. Ellis, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0947-01",
  "first_page_order": 969,
  "last_page_order": 972
}